United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 158. Prosecution of War Crimes
The UK Military Manual (1958) notes:
The [1907 Hague Regulations] themselves … provide that the perpetrators of the particular offences of seizure, damage or wilful destruction of churches, hospitals, schools, museums, historic monuments, works of art, etc
., shall be prosecuted.
The manual also states:
In the case of “any alleged violations” of the 1949 [Geneva] Conventions an inquiry must be instituted at the request of a party to the conflict. If a violation be established, the parties to the conflict must put an end to it and punish it with the least possible delay. These provisions form an important method of ensuring that the laws of war are observed by belligerents.
The manual further states:
All parties to the 1949 [Geneva] Conventions undertook to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the “grave breaches” of the Conventions. Parties are also bound to search for persons alleged to have committed, or ordered, “grave breaches”, and regardless of their nationality, to bring them to trial in their own courts. If a party so prefers, and in accordance with the provisions of its own legislation, it may hand such persons over for trial to another State concerned which is a party to the Conventions, provided that that other State has made out a prima facie
case against those persons.
The UK LOAC Manual (2004) states:
14.16. In some circumstances, members of a PSO [peace support operations] force may be expressly or impliedly charged with certain responsibilities for ensuring the compliance of others with the law of armed conflict. For example, they may have a responsibility to intervene so far as feasible to prevent the commission of grave breaches or other war crimes or to arrest persons indicted for such offences. In addition, there is a duty on states party to Additional Protocol I to co-operate with the United Nations in response to serious violations of the law of armed conflict.
16.1. Enforcement of the law of armed conflict can involve a wide variety of measures. “Enforcement” is taken here to mean action to ensure observance of the law and also action that may be taken following alleged or actual violations. Action aimed at effective enforcement of the law can include, but is not limited to:
h. Penal and disciplinary measures, such as trials before civil courts or courts-martial or appropriate disciplinary action by commanding officers. Trials may be either within a single state or organized on an international basis.
16.1.2. Complaints of unlawful acts and omissions alleged to have been committed by individuals or by commanders are an almost inevitable feature of warfare. All sides will be striving to win the battle for public and world opinion and no state can afford to ignore this. Hostile opinion can lead to loss of political goodwill and public support and damage morale amongst the forces concerned. Failure by belligerent governments to investigate and, where appropriate, punish the alleged unlawful acts of members of their armed forces can contribute to the loss of public and world support, leading to isolation for the state involved.
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] conventions or the first [Additional] protocol shall be guilty of an offence and on conviction on indictment [shall be punished].
(2) In the case of an offence under this section committed outside the United Kingdom, a person may be proceeded against, indicted, tried and punished therefor in any place in the United Kingdom as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.
The UK Geneva Conventions Act (1957), as amended in 2009, states:
(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled [1949 Geneva] conventions, the first [1977 Additional] protocol or the third [2005 Additional] protocol shall be guilty of an offence.
(1A) For the purposes of subsection (1) of this section—
(a) a grave breach of a scheduled convention is anything referred to as a grave breach of the convention in the relevant Article, that is to say—
(i) in the case of the [1949 Geneva] convention [I] set out in the First Schedule to this Act, Article 50;
(ii) in the case of the [1949 Geneva] convention [II] set out in the Second Schedule to this Act, Article 51;
(iii) in the case of the [1949 Geneva] convention [III] set out in the Third Schedule to this Act, Article 130;
(iv) in the case of the [1949 Geneva] convention [IV] set out in the Fourth Schedule to this Act, Article 147; and
(b) a grave breach of the first [Additional] protocol is anything referred to as a grave breach of the protocol in paragraph 4 of Article 11, or paragraph 2, 3 or 4 of Article 85, of the protocol.
(c) a grave breach of the third [Additional] protocol is anything which for the purposes of Article 6 of the protocol constitutes the perfidious use of the emblem specified in section 6(1)(f) of this Act.
The UK War Crimes Act (1991) grants the UK courts jurisdiction over war crimes committed in Germany or German-occupied territory during the Second World War by persons who are now UK citizens or residents, irrespective of their nationality at the time of the alleged offence. The act only applies to crimes such as murder and manslaughter, which “constituted a violation of the laws and customs of war”, and were considered war crimes during the Second World War.
The UK UN Personnel Act (1997) provides:
If a person commits, outside the United Kingdom, any act to or in relation to a UN worker which, if he had done it in any part of the United Kingdom, would have made him guilty of [murder, manslaughter, culpable homicide, rape, assault causing injury, kidnapping, abduction or false imprisonment], he shall in that part of the United Kingdom be guilty of that offence.
This Act does not apply to any UN operation
which is authorised by the Security Council of the United Nations as an enforcement action under Chapter VII of the Charter of the United Nations, … in which UN workers are engaged as combatants against organised armed forces, and … to which the law of international armed conflict applies.
The UK ICC Act (2001) includes as offences under domestic law, the acts of genocide, crimes against humanity and war crimes as defined in the 1998 ICC Statute.
Thus, the Act provides: “It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.”
There is a similar provision for Northern Ireland.
In the aftermath of the war in the South Atlantic, the UK Metropolitan Police investigated allegations according to which criminal offences had been committed by UK soldiers during that conflict. However, in 1994, in reply to a question in the House of Lords, the Lord Chancellor stated:
The Director of Public Prosecution has … announced that she has concluded her consideration of the inquiries carried out by the Metropolitan Police into allegations that criminal offences had been committed by members of the Parachute Regiment during their operations in the Falkland Islands in 1982 … She has concluded that the evidence is not such as to afford a realistic prospect of conviction of any person for any criminal offence and has therefore decided that no criminal proceedings should be instituted.
In July 1997, UK special forces arrested a leading Bosnian war crime suspect, in order to bring him before the International Criminal Tribunal for the former Yugoslavia.
In 2003, in a written reply to a question in the House of Commons, the UK Minister of State for Defence stated:
The offences contained in the Statute of the International Criminal Court (ICC) reflect international law provisions that were already applicable to the conduct of United Kingdom of Great Britain and Northern Ireland forces in any theatre of engagement. The ICC Statute does not therefore impose new conditions.
The consequences for our forces of UK ratification of the ICC Statute were carefully examined in preparation for the ICC Act 2001. Under the Statute, investigation and, if necessary prosecution of any allegations of war crimes, crimes against humanity or genocide by a UK national would be carried out by the UK. The Court would intervene only if it determined that a state was unwilling or unable to pursue a particular case, but it is inconceivable that the UK would ever be unable or unwilling to investigate or take appropriate action.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated: “We are making it clear to Iraqi commanders in the field that if they use chemical or biological weapons, they will be deservedly prosecuted with the utmost severity.”
In 2003, in a written reply to a question in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
We will investigate any allegation of war crimes against UK forces in the present conflict. If we find evidence to justify prosecution, we will seek to bring those responsible to justice. As regards allegations of war crimes committed by members of the Saddam regime prior to this conflict, the Government is assessing, in conjunction with coalition partners, how these can best be investigated and those responsible brought to justice.
In 2003, in a written reply to a question in the House of Commons on “the circumstances in which the International Criminal Court could intervene to prosecute UK citizens in cases where the British judicial system was unwilling or unable to do so”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
In accordance with the complementarity provisions of the Statute of the International Criminal Court (ICC) and the International Criminal Court Act 2001 (which gave domestic effect to the Statute), the relevant UK authorities will, where appropriate, exercise jurisdiction in respect of allegations against UK service personnel, UK Citizens or residents.
In 2003, in a letter to the President of the UN Security Council, the Permanent Representatives of the United Kingdom and the United States wrote:
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq, including by: … promoting accountability for crimes and atrocities committed by the previous Iraqi regime …
In 2003, in reply to a question in the House of Commons, the UK Prime Minister stated:
Mr. Duncan Smith: Given the Prime Minister’s answer, the whole House also will have heard the statement by President Bush that any Iraqi commander who commits a war crime will be prosecuted. Will he confirm that that dictum goes right to the top and, despite some reports of immunity, includes Saddam Hussein himself?
The Prime Minister
: There was a possibility, if Saddam Hussein was prepared to leave voluntarily, quit Iraq and spare his people the conflict, that we could have ensured that that happened. The circumstances in relation to any immunity might then have been different, but it is reasonably clear, I think, that that will not happen. I think that it is very important that those in senior positions of responsibility in Saddam Hussein’s regime realise that they will be held accountable for what they have done.
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
The United Kingdom of Great Britain and Northern Ireland’s rules of engagement do not strictly in law provide UK service personnel with immunity from the UK legal process. However, they are robust and are drawn up in accordance with international and domestic law. Therefore, acting within the rules is very likely in practice to provide protection from prosecution.
My Lords, the reason it cannot be certain in law is because rules of engagement are for guidance only and do not constitute law, which is for the courts to determine. I shall try to assist by making the distinction between immunity from legal process – which is the subject of the Question – where there can be no guarantee that legal process may be instituted, and practical consequences. Where a member of the Armed Forces acts within the rules of engagement – that could, of course, be a matter for the court eventually to have to decide – the matter is unlikely to go to court and almost certainly would not result in a finding of liability or guilt.
In 2003, in its fourth periodic report to the Committee Against Torture, the United Kingdom stated:
As indicated in the third report, the United Kingdom ratified Protocols I and II to the Geneva Convention on 28 January 1998. The International Criminal Court (ICC) Act 2001 makes minor amendments to the Geneva Conventions Act 1957. These ensure that the provisions for consent to prosecutions for grave breaches of the Geneva Conventions under the 1957 Act are consistent with those for the prosecutions under the ICC Act. In the case of such offences, proceedings will not begin without the consent of the Attorney-General or, in Scotland, the Lord Advocate.
In 2005, in its Annual Report on Human Rights, the UK Foreign and Commonwealth Office stated:
We have made it clear that we will not hesitate to act where British troops fail to uphold the high standards of behaviour set out in the Geneva Conventions and the rest of international humanitarian law. The individuals accused of the mistreatment of Iraqi civilians at a humanitarian aid distribution centre near Basra in May 2003 have stood trial and those found guilty have been sentenced.
In 2005, in a written answer to a question concerning “the bringing to justice of suspected war criminals”, the UK Parliamentary Under-Secretary of State, Home Office, stated:
The Government takes all allegations of war crimes and crimes against humanity very seriously and is fully committed to its obligations under international law, which it has implemented through the Geneva Conventions Act 1957, the International Criminal Court Act 2001 and section 134 of the Criminal Justice Act 1988.
The prosecution of particular cases in England and Wales is a matter for the police and the Crown Prosecution Service. The recent successful trial of Faryadi Zardad, found guilty in July 2005 of torture and hostage taking in Afghanistan, demonstrated the commitment on the part of the police and CPS [Crown Prosecution Service] to pursue major war crimes cases.
In 2006, in a written answer to a question in the House of Commons concerning the War Crimes Act 1991, the UK Parliamentary Under-Secretary, Home Office, stated:
The War Crimes Act 1991 was passed by Parliament to allow the prosecution of war crimes committed during the Second World War in Germany or German occupied territory by people who are now British citizens or resident in the UK.
The Metropolitan Police War Crimes Unit, which disbanded in 1999, conducted enquiries into a large number of cases arising from the 1989 Report of the War Crimes Inquiry and elsewhere. Most cases did not lead to criminal proceedings because either the suspect was no longer alive or there was insufficient evidence for prosecution. There has been one conviction under the Act. Anthony Sawoniuk was sentenced to life imprisonment in 1999 and died in custody in 2005. In one other prosecution, against Syzmon Serafinowicz in 1997, the court found the defendant unfit to plead and the then Attorney General entered a Nolle Prosequi (permanent stay of prosecution).
The Metropolitan Police continues to have lead responsibility for the investigation of allegations of war crimes under the Act. defendant unfit to plead and the then Attorney General entered a Nolle Prosequi (permanent stay of prosecution). The Metropolitan Police continues to have lead responsibility for the investigation of allegations of war crimes under the Act.
In 2007, in a written answer to a question in the House of Commons concerning the United Kingdom’s compliance with the 1949 Geneva Convention IV, particularly with its Articles 1 and 147, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The United Kingdom has signed and ratified the Fourth Geneva Convention and complies with its provisions. Every appropriate opportunity is taken in our bilateral relations and through appropriate international bodies to promote respect for the convention and its articles.
The UK has enacted legislation (Geneva Conventions Act 1957, as amended) to enable prosecutions in respect of the grave breaches set out in article 147 in the UK. Alleged breaches of the convention relevant to the UK that are brought to our attention are investigated by the appropriate authorities. Prosecution decisions are made in accordance with criminal law principles by the appropriate prosecuting authority.
In 2008, the UK Army published the Aitken Report which investigated cases where members of the British Army were alleged or proven to have mistreated or killed Iraqi civilians outside the context of immediate combat operations in 2003 or early 2004. The Aitken Report stated:
27. Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded.
28. The Army’s position is straightforward on the issue of prosecution. Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA [Army Prosecuting Authority]. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the Army, is additionally appointed by The Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts-martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day to day responsibility for the APA. The APA is under the general superintendence of the Attorney-General and is, rightly, independent of the Army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the Army chain of command, nor Ministers, officials nor anyone else can make those decisions. However complex the situation in which it finds itself, the Army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the Army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation.
29. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court martial system stood at 12% as compared with 13% in the Crown Courts. It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted.
30. It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the Military Criminal Justice System.
Developments Since 2003
31. But some weaknesses in the system have been identified as a result of experience, and rectified. … To improve the quality of legal advice in training, and to capture lessons learned on operations, an Operational Law Branch was fully established in January 2006 under an operationally-experienced Army Legal Services Brigadier. …
32. The effectiveness of the RMP [Royal Military Police] has similarly been enhanced by a number of measures implemented since 2004.
[footnote in original omitted]
In 2008, in a written statement to the House of Commons, the UK Secretary of State for Defence stated:
After wide consultation and after considering the representations that I have received, and with the full support of the military chain of command, including the Chief of the Defence Staff and the Chief of the General Staff, I have decided that the right thing to do is to establish a public inquiry under the Inquiries Act 2005. The inquiry will examine the circumstances surrounding the death of Baha Mousa [while detained by British armed forces in Iraq in September 2003]. The terms of reference and other details will be made public once they have been established in accordance with the provisions of the Act, and the inquiry report will be published.
This reinforces my determination, and that of the Chief of the General Staff, to do everything we can to understand how it came to be that Mr Mousa lost his life. The Army has no wish to hide anything in this respect. It has looked at itself very critically since 2003, and has made a number of significant changes that were enumerated in Brigadier Aitken’s report of January this year. It nevertheless remains anxious to learn all the lessons that it possibly can from this disturbing incident. Overall, the conduct of tens of thousands of our people in Iraq has been exemplary; it is a tiny number who have caused a stain on the reputation of the British Army. But that does not mean we can allow these events to pass without looking into them thoroughly.
I hope this independent inquiry will reassure the public that no stone has been left unturned. The Army and the Ministry of Defence will be giving the fullest co-operation to this inquiry.
In 2008, in a written statement to the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated regarding the public inquiry into the death of Mr Baha Mousa while in detention by British armed forces in Iraq:
The inquiry will be held under the Inquiries Act 2005 …
The inquiry’s terms of reference are:
To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations that have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion The Queen’s Lancashire Regiment in Iraq in 2003, and to make recommendations.
In my Statement on 14 May, I described the death of Mr Mousa as a disturbing incident; this was not just because a man died in the custody of British soldiers, but because an investigation by the Royal Military Police and subsequent court martial highlighted further important questions that needed to be answered. I am confident that the terms of reference that I have set out not only will enable the inquiry to conduct a thorough examination of the circumstances surrounding the death, but are sufficiently focused to ensure that its conclusions can be reached in a timely manner.
The inquiry will, of course, have the full support of the Ministry of Defence. Much work is in hand to ensure that the inquiry has the material that it needs and that those who will be required to assist the inquiry are given legal advice.
In 2009, in a written answer to the House of Lords, a UK Minister of State, Foreign and Commonwealth Office, stated:
We have called for an independent and credible process to examine allegations of war crimes by both sides in Sri Lanka. Both my right honourable friend the Foreign Secretary and I raised this with the Sri Lankan Foreign Minister during his recent visit to the UK. Under international law, it is the primary responsibility of the state against whose forces allegations are made to investigate possible war crimes committed by its own forces.
We have encouraged the Sri Lanka Government to ensure that their own domestic process, the Lessons Learnt and Reconciliation Commission, is open and transparent and works with the UN Secretary-General’s panel of three experts whose remit is to advise on accountability issues.
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states:
An essential part of protecting civilians in armed conflict is to ensure that there is no impunity for those who commit serious crimes during armed conflict, and that perpetrators are held to account at both a domestic level and at an international level where necessary. … The international community needs to ensure that, where serious violations of international humanitarian and human rights law occur, those who bear the greatest responsibility for international crimes, including war crimes and crimes against humanity are prosecuted. We also believe that ensuring justice for such crimes is an integral part of post-conflict reconstruction and reconciliation. The UK is committed to ensure such perpetrators are held to account.
In 2009, in the MH and DS case, the England and Wales Court of Appeal (Civil Division) was called upon to decide a conjoined appeal, one of which concerned an appeal by MH, a Syrian Kurd, against a decision to exclude her from refugee protection on the basis of Article 1F of the 1951 Refugee Convention. The appellant had been affiliated with the Kurdistan Workers’ Party (PKK) and had
inter alia worked as an assistant nurse in a refugee camp set up for Turkish Kurds in Syria. The appeal was allowed. Lord Justice Richards stated:
28. The question under Article 1F(c) [of the 1951 Refugee Convention] is whether there are serious reasons for considering that the person claiming asylum has been guilty of acts contrary to the purposes and principles of the United Nations. Neither party has disputed, at least directly, that in answering that question a tribunal should follow the guidance given [by the Immigration and Asylum Tribunal] in Gurung Gurung (Exclusion – Risk – Maoist) Nepal  UKIAT 04870].
31. It is not in dispute that nurses and other medical personnel enjoy a special status and protection under international humanitarian law. In my view that does not take them automatically outside the scope of the exclusion in Article 1F(c): for example, a medically qualified member of a terrorist organisation who treated an injured suicide bomber with the intention that he or she should carry out a further bombing mission would have grave difficulty in resisting the application of the exclusion. The point is plainly relevant, however, to an assessment of whether the exclusion applies. In the ordinary course I would not expect the provision of medical or nursing services to bring a person within Article 1F(c) on the basis that they form part of the infrastructure of support for a terrorist organisation; but in each case the point will have to be taken into account with other relevant factors in reaching an overall assessment as to the application of Article 1F(c).
Lord Justice Richards concluded:
38. … I think it clear that MH’s membership of the PKK and what she did while a member of the PKK did not amount to (a) acts of committing, preparing or instigating terrorism, or (b) acts of encouraging or inducing others to commit, prepare or instigate terrorism, and that they were insufficient to make her responsible for the commission of such acts by others.
39. My view is reinforced if regard is had to the special position of nursing under international humanitarian law. MH’s role as an assistant nurse in the refugee camp is in one sense the most significant of her activities, since it included the care of injured guerrillas; but it seems to me that the humanitarian nature of the work she was doing, and the context in which she was doing it, weigh against rather than in favour of a finding of complicity in the terrorist acts of the PKK.
40. By reaching a conclusion on the application of Article 1F(c) that was not reasonably open to it, the tribunal erred materially in law. That error, taken by itself, is sufficient for success in MH’s appeal against the tribunal’s dismissal of her asylum appeal.
In 2010, the UK Supreme Court was called upon to decide an appeal by the Secretary of State for the Home Department in the JS case. The England and Wales Court of Appeal had quashed the Secretary of State’s decision to exclude from refugee protection and humanitarian protection a Sri Lankan Tamil who had been involved in military operations as a member of the Liberation Tigers of Tamil Eelam (LTTE). The appeal was unanimously dismissed and the Secretary of State was instructed to re-determine the respondent’s asylum application in accordance with the Supreme Court’s guidance. Lord Brown, who gave the leading judgment, summarized the issues before the Court as follows:
1. The  Refugee Convention was drafted for a world scarred by long years of war crimes and other like atrocities. There remain, alas, all too many countries where such crimes continue. Sometimes those committing them flee abroad and claim asylum. It is not intended that the [1951 Refugee] Convention will help them. However clearly in need of protection from persecution an asylum seeker may be, he is not to be recognised as a refugee where “there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”. So states article 1F(a) of the Convention (and, for good measure, article 12(2)(a) of the Qualification Directive (2004/83/EC) – this being implemented into domestic law by Regulations 2 and 7(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)). It is the Court’s central task on the present appeal to determine the true interpretation and application of this disqualifying provision. Who are to be regarded as having committed such a crime (“war criminals” as I shall generally refer to them) within the meaning of article 1F(a)? More particularly, assuming that there are those within an organisation who clearly are committing war crimes, what more than membership of such an organisation must be established before an individual is himself personally to be regarded as a war criminal?
2. It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article’s disqualifying provisions. The question is, I repeat, what more?
[emphasis in original]
Lord Brown recalled a previous decision in the Gurung case by the Immigration and Asylum Tribunal (IAT) on exclusion from refugee status which had formed the basis for the Secretary of State’s refusal to grant refugee or humanitarian protection:
21. It is convenient next to turn to Gurung v Secretary of State for the Home Department  Imm AR 115, the starred decision of the IAT (under its President, Collins J) on which the Secretary of State’s refusal decision was based in the present case. It is necessary, I fear, to cite it at some length. It was, after all, the only case to which the decision letter referred. Having noted (at para 102) that in many article 1F cases “an adjudicator will be faced with evidence that an individual is a member of an organisation committed to armed struggle or the use of violence as a means to achieve its political goals”, the Tribunal’s judgment continued:
104. The Tribunal has consistently stated that mere membership of such organisations is not enough to bring an appellant within the Exclusion Clauses: … In the light of previous case law and the further materials now before us, we would highlight two further principles that should be borne in mind when considering complicity.
105. One is that it would be wrong to say that an appellant only came within the Exclusion Clauses if the evidence established that he has personally participated in acts contrary to the provisions of Art 1F. If the organisation is one or has become one whose aims, methods and activities are predominantly terrorist in character, very little more will be necessary. We agree in this regard with the formulation given to this issue by UNHCR in their post September 11, 2001 document, Addressing Security Concerns without Undermining [R]efugee Protection: UNHCR’s Perspective, at paragraph 18: “Where, however, there is sufficient proof that an asylum-seeker belongs to an extremist international terrorist group, such as those involved in the 11 September attacks, voluntary membership could be presumed to amount to personal and knowing participation, or at least acquiescence amounting to complicity in the crimes in question. In asylum procedures, a rebuttable presumption of individual liability could be introduced to handle such cases. Drawing up lists of international terrorist organisations at the international level would facilitate the application of this procedural device since such certification at the international level would carry considerable weight in contrast to lists established by one country alone. The position of the individual in the organisation concerned, including the voluntariness of his or her membership, as well as the fragmentation of certain groups would, however, need to be taken into account”.
106. That complicity in this type of case should be sufficient to bring an appellant within the Exclusion Clauses is necessary in order to adequately reflect the realities of modern-day terrorism. The terrorist acts of key operatives are often possible only by virtue of the infrastructure of support provided by other members who themselves undertake no violent actions. As the US Court of Appeals, Ninth Circuit noted in McMullen v INS 685 F 2d 1312 (9th Cir 1981) at 599: “We interpret both the [1951 Refugee] [C]convention and the [1980 Refugee] [A]ct to permit deportation of individuals who commit serious, non-political crimes, and we have concluded that this includes terrorist acts against ordinary citizens. We refuse to interpret these documents to apply only to those who actually ‘pulled the trigger’, because we believe that this interpretation is too narrow. In our judgment, the only reasonable interpretation of the exception is that it encompasses those who provide the latter with the physical, logistical support that enables modern, terrorist groups to operate”.
107. Likewise the Tribunal noted in Ozer (10922, May 1994) when considering the appeal of a person who had voluntarily joined and supported Dev Sol which, with reference to objective country materials on Turkey was described as then being an illegal party dedicated to violence, “… then it is no use his asserting that he does not support its policy or methods. If he does not endorse a central policy of the party he should not be a member of it: in any event his membership and contribution to the life of the party is indirect support for its violent acts.”
108. The other principle to be borne in mind is that whilst complicity may arise indirectly, it remains essential in all cases to establish that the appellant has been a voluntary member of such an organisation who fully understands its aims, methods and activities, including any plans it has made to carry out acts contrary to Art 1F. Thus for example it would be wrong to regard the mere fact that an appellant has provided a safe house for LTTE combatants as sufficient evidence that he has committed an excludable offence. If, however, he has transported explosives for LTTE combatants in circumstances where he must have known what they were to be used for, there may well be a serious 1F issue.
109. We would also observe that international criminal law and international humanitarian law, which in our view should be the principal sources of reference in dealing with such issues as complicity, adopt similar although more detailed criteria in respect of those who for the purpose of facilitating an international crime aid, abet or otherwise assist in its commission or its attempted commission, including providing the means for its commission (see Art 25 of the  International Criminal Court Statute and Art 7(1) of the  ICTY Statute as analysed in the case of Tadic Case No. IT-94-1-T, 7 May 1997). Of course such reference will need to bear in mind the lower standard of proof applicable in Exclusion Clause cases.
110. However, as the passage just cited from UNHCR highlights, even when complicity is established the assessment under Art 1F must take into account not only evidence about the status and level of the person in the organisation and factors such as duress and self-defence against superior orders as well as the availability of a moral choice; it must also encompass evidence about the nature of the organisation and the nature of the society in which it operates. Such evidence will need to include the extent to which the organisation is fragmented.
111. Observing as we do that in certain past Tribunal cases, Karthirpillai (12250) being an unhappy example, adjudicators and the Tribunal have not always taken a contextual approach, we think it useful to consider cases along a continuum.
112. On the one end of the continuum, let us postulate an organisation that has very significant support amongst the population and has developed political aims and objectives covering political, social, economic and cultural issues. Its long-term aims embrace a parliamentary, democratic mode of government and safeguarding of basic human rights. But it has in a limited way or for a limited period created an armed struggle wing in response to atrocities committed by a dictatorial government. In such a case an adjudicator should be extremely slow to conclude that an appellant’s mere membership of such an organisation raises any real issue under Art 1F, unless there is evidence that the armed actions of this organisation are not in fact proportionate acts which qualify as ‘non-political crimes’ within Art 1F(b) and, if they are not, that he has played a leading or actively facilitative role in the commission of acts or crimes undertaken by the armed struggle wing.
113. At the other end of this continuum, let us postulate an organisation which has little or no political agenda or which, if it did originally have genuine political aims and objectives, has increasingly come to focus on terrorism as a modus operandi. Its recruitment policy, its structure and strategy has become almost entirely devoted to the execution of terrorist acts which are seen as a way of winning the war against the enemy, even if the chosen targets are primarily civilian. Let us further suppose that the type of government such an organisation promotes is authoritarian in character and abhors the identification by international human rights law of certain fundamental human rights. In the case of such an organisation, any individual who has knowingly joined such an organisation will have difficulty in establishing he or she is not complicit in the acts of such an organisation.
Lord Brown reviewed the approach adopted in the Gurung case to Article 1F of the 1951 Refugee Convention and held:
(2) The Gurung approach
29. … [T]he appellant below “did not on the surface challenge the guidance given by the IAT in Gurung’s case”. There are, however, criticisms to be made of it and it should not in future be accorded the same oracular standing as it seems hitherto to have enjoyed. In the first place, it is unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub-category consisting of those “whose aims, methods and activities are predominantly terrorist in character”, and to suggest that membership of one of these gives rise to a presumption of criminal complicity: “very little more will be necessary” (Gurung para 105). True it is that this approach finds support from the quoted paragraph 18 of the UNHCR’s post-9/11 Perspective – and, indeed, from a line of Canadian authority commencing with the decision of the Canadian Federal Court of Appeal in Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173, 180 where to MacGuigan JA it “seem[ed] apparent … that where an organisation is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts”.
30. Rather, however, than be deflected into first attempting some such subcategorisation of the organisation, it is surely preferable to focus from the outset on what ultimately must prove to be the determining factors in any case, principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes.
31. No doubt, as Stanley Burnton LJ observed in KJ (Sri Lanka), at para 37, if the asylum-seeker was “an active member of [an] organisation that promotes its objects only by acts of terrorism, [t]here will almost certainly be serious reasons for considering that he has been guilty of [relevant] acts”. I repeat, however, the nature of the organisation itself is only one of the relevant factors in play and it is best to avoid looking for a “presumption” of individual liability, “rebuttable” or not. As the present case amply demonstrates, such an approach is all too liable to lead the decision-maker into error.
32. The second major criticism to be made of Gurung relates to its introduction (at paras 111–113) of the idea of a “continuum” for war crimes cases. The reality is that there are too many variable factors involved in each case, some militating one way, some the other, to make it helpful to try to place any given case at some point along a continuum. But more troublingly still, the tribunal in these paragraphs introduces considerations which properly have no place at all in determining how article 1F applies. Whether the organisation in question is promoting government which would be “authoritarian in character” or is intent on establishing “a parliamentary, democratic mode of government” is quite simply nothing to the point in deciding whether or not somebody is guilty of war crimes. War crimes are war crimes however benevolent and estimable may be the long-term aims of those concerned. And actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies.
(3) The correct approach to article 1F
33. There can be no doubt, as indeed article 12(3) of the Qualification Directive provides, that article 1F disqualifies not merely those who personally commit war crimes but also those “who instigate or otherwise participate in the commission of [such] crimes”. Article 12(3) does not, of course, enlarge the application of article 1F; it merely gives expression to what is already well understood in international law. This is true too of paragraphs (b), (c) and (d) of article 25(3) of the ICC Statute, each of which recognises that criminal responsibility is engaged by persons other than the person actually committing the crime (by pulling the trigger, planting the bomb or whatever) who himself, of course, falls within article 25(3)(a). Paragraph (b) encompasses those who order, solicit or induce (in the language of article 12(3) of the Directive, “instigate”) the commission of the crime; paragraph (c) those who aid, abet, or otherwise assist in its commission (including providing the means for this); paragraph (d) those who in any other way intentionally contribute to its commission (paras (c) and (d) together equating, in the language of article 12(3) of the Directive, to “otherwise participat[ing]” in the commission of the crime).
34. All these ways of attracting criminal liability are brought together in the ICTY Statute by according individual criminal responsibility under article 7(1) to anyone who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” of the relevant crime. The language of all these provisions is notably wide, appreciably wider than any recognised basis for joint enterprise criminal liability under domestic law. That, it seems to me, is what the German court was saying, at para 21 of the BverwG [Federal Administrative Court] judgment … when holding that the exclusion “covers not only active terrorists and participants in the criminal sense, but also persons who perform advance acts in support of terrorist activities.”
35. It must surely be correct to say, as was also said in that paragraph, that article 1F disqualifies those who make “a substantial contribution to” the crime, knowing that their acts or omissions will facilitate it. It seems to me, moreover, that Mr Schilling, the UNHCR Representative, was similarly correct to say in his recent letter that article 1F responsibility will attach to anyone “in control of the funds” of an organisation known to be “dedicated to achieving its aims through such violent crimes”, and anyone contributing to the commission of such crimes “by substantially assisting the organisation to continue to function effectively in pursuance of its aims”. This approach chimes precisely with that taken by the Ninth Circuit in McMullen (see para 106 of Gurung cited above): “[Article 1F] encompasses those who provide [the gunmen etc] with the physical, logistical support that enable[s] modern, terrorist groups to operate.”
36. Of course, criminal responsibility would only attach to those with the necessary mens rea (mental element). But, as article 30 of the ICC Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent. (I would for this reason reject the respondent’s criticism of the omission from paragraph 21 of the German court’s judgment of any separate reference to intent; that ingredient of criminal responsibility is already encompassed within the Court’s existing formulation).
37. Similarly, and I think consistently with this, the ICTY Chamber in Tadic defines mens rea in a way which recognises that, when the accused is participating in (in the sense of assisting in or contributing to) a common plan or purpose, not necessarily to commit any specific or identifiable crime but to further the organisation’s aims by committing article 1F crimes generally, no more need be established than that the accused had personal knowledge of such aims and intended to contribute to their commission.
38. Returning to the judgment below with these considerations in mind, I have to say that paragraph 119 does seem to me too narrowly drawn, appearing to confine article 1F liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly para 119 is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.
39. It would not, I think, be helpful to expatiate upon article 1F’s reference to there being “serious reasons for considering” the asylum-seeker to have committed a war crime. Clearly the Tribunal in Gurung (at the end of para 109) was right to highlight “the lower standard of proof applicable in exclusion clause cases” – lower than that applicable in actual war crimes trials. That said, “serious reasons for considering” obviously imports a higher test for exclusion than would, say, an expression like “reasonable grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting”. I am inclined to agree with what Sedley LJ said in Yasser Al-Sirri v Secretary of State for the Home Department  EWCA Civ 222, para 33: “[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”
40. In the result I would dismiss this appeal but vary the order below to provide that in re-determining the respondent’s asylum application, the Secretary of State should direct himself in accordance with this Court’s judgments, not those of the Court of Appeal.
The other members of the Court agreed with Lord Brown and dismissed the appeal, with Lord Hope and Lord Kerr giving additional reasons for doing so.
In 2005, in a written answer to a question concerning, inter alia, the granting of asylum to alleged war criminals, the UK Minister of State for Immigration stated:
The Government’s policy that the UK should not provide a safe haven for alleged war criminals was set out in the 2002 White Paper, Secure Borders, Safe Haven. The Government are committed to making wider use of existing immigration and nationality powers to prevent suspected war criminals and those who may have committed crimes against humanity from entering the UK or from establishing themselves here. These powers include the ability to refuse leave to enter or remain on the grounds that the person’s presence in the UK is not conducive to the public good, to refuse or deprive an individual of British citizenship and to exclude individuals from refugee protection if there are serious reasons for considering that they have committed war crimes or crimes against humanity.
In 2006, in a written answer to a question in the House of Commons concerning Rwandan war criminals, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated: “The Government are committed to a policy of no safe haven for those who commit genocide, war crimes or crimes against humanity.”